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Thinking About Conservation Easement Amendments

farm buildingsYou may have seen mention in the news about a bill that would set up a public process to govern conservation easement amendments (changes to an easement). 

Current law allows a land trust and the owner of conserved land to amend or terminate a conservation easement, with no public notice, no clear criteria, and no third-party approval.

VLT initially supported the bill, wishing to have a public process where there currently is none.

However, after hearing from many our members, we decided to pull our support from the bill. Members were concerned that the bill was too far reaching. VLT would still like to see some public governing of the amendment process, but for now, is planning to engage with our members to lean more from them about their concerns.

As a start, we thought it would be helpful to share some basic information about easement amendments and offer some examples of amendments that VLT has done.

 

What are conservation easement amendments?

VLT’s conservation easements are intended to protect land in perpetuity. However, circumstances can arise that landowners and VLT could not have anticipated when an easement was originally drafted; in these situations, VLT and the owner of the protected land may consider amending the easement.

An amendment is a change to an easement that can strengthen an easement’s conservation values. An amendment can also clarify intentions of the landowner and improve enforceability.

The perpetuity of the purpose and intention of a conservation easement

The purpose of a conservation easement is to protect one or more publicly recognized functions of the land that are important to a landowner or a community.

Most of VLT’s conserved lands have easements that exist to protect agriculture, forestry, recreation, natural resources, or specific ecological features.

The purpose of the easement is something that exists in perpetuity. That is, the intention of the landowner at the time of conservation is honored during any amendment process.

Easements also include specific “permitted and restricted uses.” This section guides management of the land and the activities that are permissible in support of the purpose of the easement. This is where some limited flexibility is important.

Permitted and restricted uses are written into the easement with the best information available at the time of conservation. They are written to support the conservation purpose of a property. In some instances, years later, these permissions and restrictions become barriers to promoting the very same conservation purpose they were intended to protect.

For instance, the agriculture and forestry sectors evolve over time: there are technological innovations and new knowledge about land management. Management techniques that promote recreation can change over time. Land management practices that support ecological integrity, wildlife habitat, and water quality adapt to new scientific discoveries and new threats, such as climate change and invasive species.

A farmland easement with permissions and restrictions originally designed for a dairy may not support the transition to a vegetable operation. A natural area easement that prohibits management techniques in support of ecological values may unintentionally prohibit necessary invasive species management.

An easement may not include river buffers and water quality enhancements that would serve to protect communities from floods and allow for the natural processes of rivers. The original easement simply may not have anticipated change or risks.

Why does Vermont need legislation to address amendments?

VLT would like to see legislation that addresses these three questions:

  1. Who should make the ultimate decision to amend a perpetual easement?
  2. Who should receive notice and be heard?
  3. What standards should be applied in determining whether and when an amendment is appropriate?

Current law allows a land trust and the owner of conserved land to amend or terminate a conservation easement, with no public notice, no clear criteria, and no third-party approval.

It should be noted that VLT has never terminated an easement and has never considered such drastic action. Still the fact that easements are amended at all may be a surprise to many people. That they are unregulated may also come as a surprise.

Currently, VLT has a rigorous policy and process in place to carefully review amendment requests and to ensure that any amendment supports the conservation easement’s purposes and values. VLT staff apply high standards before recommending any amendments to our Board of Trustees.

This process conforms to national Land Trust Alliance standards and practices, and with federal law. VLT would still like to see more oversight in this area, specifically in the form of a legislated public process.

The public has a stake in the conservation values protected by all VLT easements and legislation could require land trusts to amend easements only with public notice, only if conservation values are not adversely impacted, and only with third-party review and approval.

Any process that is legislated to amend easements will only strengthen the public’s role in future decisions and ensure that land trusts today and in the future will continue to uphold the values and benefits that come with conservation easements.

If you have any additional questions about conservation easements, amendments, or the legislation please contact us at (802) 223-5234.
 

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